A Congressional Fix to the Indigent Defense Crisis

In 1963, the United States Supreme Court held in Gideon v. Wainwright that poor criminal defendants are entitled to legal representation at the state's expense. The Supreme Court recognized that "lawyers in criminal courts are necessities, not luxuries," and that "the right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."

Unfortunately, the vision of the Gideon decision has never been realized at the state level, and an indigent person's right to counsel remains illusory. Across the board, for more than five decades now, states have failed to adequately fund public defense systems. Chronic under-funding leads to excessive caseloads, inadequate training and supervision, and what some have called the "McJustice" process of extracting guilty pleas from criminal defendants. We may see criminal trials on television shows, but the reality is that few defendants ever go to trial. "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the results of guilty pleas."

Here's why: eighty percent of those who are prosecuted for a crime in this country are poor. If you are poor and charged with a crime, you very likely cannot afford the bail that is set in your case. At the same time, you very likely cannot afford to sit in jail awaiting your trial because while you sit in jail, you may lose your job, your home and your ability to care for your children. So you plead guilty. As one senior public defender profiled in the HBO documentary, Gideon's Army, explains: "The system is designed to force [clients] to plead guilty, and it punishes their failure to comply."

What can be done? How can the constitutional right to counsel be vindicated? Historically, state legislatures have been reluctant to take up the cause of enhanced criminal defense services because, as Robert F. Kennedy said in 1963, the "poor man charged with crime has no lobby." State courts have been sporadically useful to public defense reform advocates, but again, there is a political problem: 39 states elect some or all of their judges and those judges feel pressure to be perceived as tough on crime, not protective of criminal defendants. Moreover, individual defendants who try to argue that their right to counsel was violated are hamstrung after their conviction by the very inefficacy they seek to challenge. There is currently no good mechanism for arguing in court that states are regularly violating the constitutional rights of poor criminal defendants.

Congressmen Sean Patrick Maloney and Hakeem Jeffries hope to change that with the introduction of the Equal Justice Under Law Act of 2016. The proposed bill achieves several laudable goals. First, it gives poor criminal defendants a right of access to the federal courts, where they can argue that the state persistently violates the Gideon mandate. Federal judges enjoy lifetime appointments and are thus insulated from the political pressure that many state judges experience. Second, the proposed bill permits a class of defendants whose constitutional right to counsel is being violated to seek relief in court on a prospective basis. This is essential -- because right now defendants must exhaust their appeals and then file a collateral suit alleging ineffective assistance of counsel years later. By then, much of the damage has been done and, because of the very inefficacy the defendant alleges, the record may be insufficient to mount a challenge. Finally, this bill would promote broader criminal justice reform. Right now, the United States has two systems of criminal justice - one for its poor citizens and another for those with means. By holding states accountable for their criminal justice practices, and by requiring states to guarantee the right to counsel announced half a century ago, this bill would promote fairness and equality.

Justice Brandeis wrote in 1928 that "For good or for ill, [the government] teaches the whole people by its example. . . If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.'" For too long states have set a bad example by flouting their constitutional obligation to safeguard the liberty of poor criminal defendants. The Equal Justice Under Law Act of 2016 offers Congress a chance to set the right example and to send the message that all citizens, whether poor or wealthy, have the right to zealous representation when their liberty is at stake.